PETER KOOPMAN v. TOWNSHIP OF MARLBORO PLANNING BOARD

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5499-07T35499-07T3

PETER KOOPMAN,

Plaintiff-Appellant,

v.

TOWNSHIP OF MARLBORO PLANNING

BOARD and COSTCO WHOLESALE, INC.,

Defendants-Respondents.

_____________________________________

 

Argued March 23, 2009 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-3448-07PW.

Edward F. Liston, Jr. argued the cause for appellant.

Michael W. Herbert argued the cause for respondent Township of Marlboro Planning Board (Herbert, VanNess, Cayci & Goodell, attorneys; Mr. Herbert, on the brief).

Linda Grasso Jones argued the cause for respondent Costco Wholesale, Inc. (Cleary, Alfieri & Jones, attorneys; Ms. Grasso Jones, of counsel and on the brief; Lani M. Lombardi, on the brief).

PER CURIAM

Plaintiff, Peter Koopman, is a property owner in Marlboro Township who appeals from the June 10, 2008 Law Division order affirming the decision of the Marlboro Township Planning Board (Board) granting bulk variances to defendant Costco Wholesale (Costco). We affirm.

Costco is the contract purchaser/owner of property designated as Block 176, Lots 5.01, 5.02, 9, 10 and 11. By written application to the Board, Costco sought permission to (1) remove an existing movie theater to create additional parking spaces in an existing strip mall and (2) construct a Costco store, gas station and kiosk. The application contained three variance requests: (1) permission to maintain the noncompliant size of 171 existent parking spaces; (2) permission to maintain the location of thirteen parking spaces distant from the building, and (3) relief as to the angle of its signage on the proposed gas station.

Among the witnesses from whom the Board heard testimony during the hearings on Costco's application were the Board's engineer; two engineers on behalf of Costco, one of whom is a traffic engineer; and an adjacent property owner, who voiced his concern about the construction of a fence and water run-off. At the conclusion of the hearings, the Board found that Costco's application for the existing parking spaces, as well as the additional parking spaces located in the distant area, was appropriate. The Board found that Costco's request to continue to utilize the 171 existing parking spaces that were one foot less in width and two feet less in length than the requisite 10' x 20' should be granted because these were existing conditions, "the correction of which would create an undue hardship . . . ."

The Board also found that a hardship would be caused without the grant of a variance in connection with the thirteen existing parking spaces which it determined did not serve the proposed Costco building and which are located within thirty feet of the existing retail structure. Additionally, the Board found that the "current configuration" of the signage represented "a better option than requiring strict adherence to the sign ordinance" and the variance request could "be granted without substantial detriment to the intent of the sign ordinance and without substantial detriment to the public good."

Plaintiff filed a complaint in lieu of prerogative writs naming the Board and Costco as defendants. Plaintiff alleged that the Board acted arbitrarily, capriciously and unreasonably in granting the variances. Defendants filed answers to the complaint and the court scheduled the matter for oral argument. At the conclusion of the hearing, the court reserved decision. On May 14, 2008, the court issued a written decision upholding the Board's action and thereafter memorialized its decision in the June 10, 2008 order. The present appeal followed.

On appeal, plaintiff raises the following points for our consideration:

POINT I

USE OF TECHNICAL REVIEW COMMITTEES CANNOT OBVIATE THE NEED TO DEVELOP THE APPROPRIATE RECORD DURING THE PUBLIC HEARINGS OF THE PLANNING BOARD TO JUSTIFY THE BOARD'S GRANT OF A VARIANCE APPLICATION.

POINT II

COSTCO DID NOT PROVE THAT IT WAS ENTITLED TO A VARIANCE PURSUANT TO N.J.S.A. 40:55[D]-70(C) REGARDING ITS APPLICATION FOR SIGNAGE IN EXCESS OF THE PERMITTED AMOUNT.

POINT III

DEFENDANT, PLANNING BOARD OF THE TOWNSHIP OF MARLBORO, SHOULD HAVE DENIED COSTCO'S APPLICATION FOR PRELIMINARY AND FINAL SITE PLAN APPROVAL BECAUSE OF THE DRAINAGE ISSUES PRESENTED BY THE APPLICATION.

Municipal actions are entitled to a presumption of validity and so typically enjoy great deference by a reviewing court. Fanelli v. City of Trenton, 135 N.J. 582, 589 (1994) (citing Brown v. City of Newark, 113 N.J. 565, 571 (1989)). New Jersey's courts have recognized that this standard imposes a heavy burden on a party challenging a municipal action and have repeatedly held that a municipal action will only be overturned upon a showing that the action in question was arbitrary, capricious or unreasonable. Bryant v. City of Atlantic City, 309 N.J. Super. 596, 610 (App. Div. 1998) (citations omitted). When faced with multiple possible courses of action, a municipal action is not considered arbitrary and capricious if the municipality acted honestly and with due consideration of the competing options. Ibid.

In this regard, a planning board is presumed to have acted fairly and a trial court's review of a planning board decision should not seek to weigh the wisdom of the decision, only its fairness. Park Ctr. at Route 35, Inc. v. Zoning Bd. of Adjustment of the Twp. of Woodbridge, 365 N.J. Super. 284, 288-89 (App. Div. 2004). As a reviewing court, we are bound by the same scope of review and will only reverse the decision of a planning board if its decision is found to be arbitrary, capricious or unreasonable. Bressman v. Gash, 131 N.J. 517, 529 (1993).

After careful review of the record, applying this legal standard of review, we affirm substantially for the reasons expressed by Assignment Judge Lawrence Lawson in his comprehensive written opinion. Plaintiff's arguments to the contrary are without sufficient merit to warrant additional discussion in a written opinion. R. 2:11-3(e)(1)(A) & (E). We add the following brief comments.

Plaintiff contends the record was not properly developed before the Board to justify the grant of the variance. We disagree.

Judge Lawson found, with respect to the variances sought as to the existing parking spaces, "the property owner could make no permitted use of the property that would not require some sort of variance relief." The judge concluded:

Costco presented evidence before the Board that the enforcement of the local ordinances in this instance presented an exceptional situation which would result in an impractical difficulty and hardship.

Furthermore, the parking requirements in an already existing parking area on the property would not substantially impair the intent and the purpose of the zone plan and zoning ordinance.

Likewise, with respect to the signage variance, the court noted that Costco only sought the variance to adjust the angle of its proposed signage on the gas station canopy "because the narrow side of the station would face the adjacent Route 9, thereby leaving a marginal area on the gas station canopy to erect its signage." The court concluded that this proposal was supported by the proofs presented to the Board and that the Board's decision to grant the variance reflected its determination that the "proposed configuration was a better option for the community rather than a strict adherence to the local ordinance."

Additionally, the court was satisfied that the Board's resolution appropriately addressed the drainage concerns raised by requiring Costco to comply with the local drainage ordinances relating to any immediate drainage issues on the adjacent properties. The court also credited the testimony of Costco's expert that the site would not increase traffic delays and noted Costco's proposal to add a "third lane on Route 9 north to reduce potential delays at the Texas Road intersection." As such, the court was satisfied that the Board "acted appropriately and within its authority in approving preliminary and final site plan approval . . . ."

Finally, we completely reject plaintiff's contention in its brief that the Judge Lawson became "distracted from his analysis of the proofs put forth to the Defendant Board" with his reference to his personal familiarity with the technical committee review process. First, in plaintiff's brief it is acknowledged that the "technical review committee process can be highly effective and valuable in many municipalities in allowing complicated applications to become more streamlined and better clarified." Second, Judge Lawson's comment was made during oral argument and there is no basis to conclude that this brief comment to counsel "distracted" him from engaging in a thorough analysis of all the proofs before he issued his cogent written opinion.

In short, Judge Lawson appropriately applied the facts to the legal standards pertaining to the grant of bulk variances as established in N.J.S.A. 40:55D-70(c) and as interpreted by our Supreme Court. See, e.g., Lang v. Zoning Bd. of Adjustment of the Borough of North Caldwell, 160 N.J. 41, 53 (1999); see also Bressman, supra, 131 N.J. at 522-23.

Affirmed.

(continued)

(continued)

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A-5499-07T3

June 9, 2009